Major Recalls - Toyota Sudden Acceleration

On August 28, 2009, California Highway Patrol Officer Mark Saylor, his wife, daughter and brother-in-law were killed in an uncontrolled acceleration crash in a 2009 Lexus ES350 in San Diego.Unlike the many deadly Toyota sudden acceleration before, this crash was captured on a 911 call made by Mrs Saylor from the speeding car with a stuck accelerator before it crashed and killed all the occu­pants.At the time of the crash, NHTSA did not have a single open invest­igation in Toyota sudden acceleration.

Beginning in 2001 with the introduction of electronic throttle control (ETC) in 2002 Camry and Lexus ES300, consumer complaints increased by 4-fold in Toyota and Lexus models. In response NHTSA received five defect petitions of which it denied four and granted one. It open­ed three Preliminary Evaluation (PE) investigations, two of which became Engineering Eval­uations.None of these investigations was concluded with a vehicle safety recall.The investigations as a whole show significant weakness in the NHTSA enforcement program which

Investigation

Year/Make/Model

Outcome

DP04-003

2002-03 Camry, Camry Solara, Lexus ES300

PE04-021

DP05-002

2002-05 Camry, Solara, Lexus ES

Denied

DP06-003

2002-06 Camry, Solara

Denied

DP08-001

2004-08 Tacoma

Denied

DP09-001

2007 Lexus ES350, 2002-03 Lexus ES300

Denied

PE07-016/EA07-010

2007-08 Camry, Lexus ES350

07E-082

PE08-025/EA08-014

2004 Sienna

Safety Improvement Campaign

Toyota exploited to avoidrecalls until the tragic crash in San Diego in August 2009 that resulted in 4 deaths in a Lexus driven by an experienced highway patrol officer who was unable to bring the vehicle to a stop.But for the crash being caught on a 911 tape, the recent recalls would not have occurred because the crash would have gone unnoticed like so many before it which the agency blamed on driver error.

Sudden unintended acceleration has always been recognized as a serious safety hazard.Early unintended acceleration recalls involved mechanical failures that were easy to detect and remedy.With the advent of electronic ignition systems and cruise control systems in the late 1970's and early 1980's unintended acceleration complaints without clear mechanical failures began to appear.NHTSA opened more and more unintended acceleration investigation.Some resulted in recalls for electronic control failures.The first two Toyota unintended acceleration recalls were for replacement of the cruise control computer which could cause unintended acceleration on start up ( 86V-132, 90V-040).

As investigations mounted into unintended acceleration in a wide range of vehicles, in January 1989 DOT’s Transportation System Center (TSC) conducted a review of unintended acceleration in which it concluded that absent evidence of throttle sticking or cruise control malfunction, driver error must have caused the unintended acceleration.“ An Examination of Unintended acceleration, ”HS-807-367 (Jan. 1989).The studies by the Institute for Telecommunications Sciences in 1975 and 1976 and their detailed analytical methods were neither cited nor used.TSC also did not look at electronic throttle control or computer software mal­functions.The vehicles examined in the study were 1983-86 models, none of which had elec­tronic throttle controls or advanced microprocessors systems found in 2002-10 Toyota vehicles.

Based on TSC’s finding that brakes could stop a vehicle suddenly accelerating from start up, NHTSA ruled out complaints that the brakes failed or could not stop a unintended acceleration from start up as driver error.A classic example of NHTSA’s use of the TSC study is its denial of a defect petition (DP03-003) into unintended acceleration in 1997-00 Lexus LS and GS model which had mechanical accelerator cables:

“At the conclusion of TSC’s effort, comprising thousands of person-hours gathering data, comprehensively testing vehicles including their systems and equipment, interviewing owners and drivers, and inspecting crash scenes and the vehicles involved, a report was released with the following conclusion: ‘‘For a unintended acceleration incident in which there is no evidence of throttle sticking or cruise control malfunction, the inescapable conclusion is that these definitely involve the driver inadvertently press­ing the accelerator instead of, or in addition to, the brake pedal.’’

In the defect petitions, most consumer complaints were excluded because they were long duration events or where the driver said the brakes could not bring the vehicle to a stop.Not a single defect petition resulted in a recall.The one that was granted (DP04-003) and became an investigation (PE04-021) was closed without a recall after NHTSA excluded most complaints.

In the most crucial investigation, PE07-016/EA07-010, the agency conducted a test of a 2007 Lexus ES350 to: “Determine whether reported incidents of unintended acceleration were caused by a vehicle system malfunction [electronic controls] or mechanical interference [floor mats].”Later during DP09-001 which the petitioner asked the agency to look at causes of unintended acceleration other than mechanical interference such as electronic controls, the agency used the test report from EA07-010 to deny the petition without even sending a single information request to Toyota. Yet when CAS filed a FOIA for the test results and test procedure, NHTSA said it had no test data or any records of test procedure.NHTSA couldn’t say what it did, how it did it or what the results were.

To make matters worse, in EA07-010, Toyota agreed to only do an equipment recall of 55,000 all weather floor mats, 07E-082.That was a recall destined to fail.The notification letters to owners did not even require the vehicles be brought in for inspection to see what mats were in the vehicles or how they were secured.The equipment recall saved Toyota $100 million in recall costs according to Toyota’s own estimate.

The only other investigation that resulted in an action was PE08-025/EA08-014 which resulted in a Safety Improvement Campaign which is not even recognized under the Motor Vehicle Safety Act. After a private meeting between NHTSA and Toyota including three former NHTSA employees representing Toyota (Erica Jones, Chris Tinto and Chris Santucci), Toyota Vice President Chris Tinto agreed to only a Safety Improvement Campaign as follows:

Thank you for taking the time to meet with me and my staff on October 14. Toyota has taken your message seriously and is extending this offer to conduct a field action in order to address the concern raised in EA08-014, an investigation into the Toyota Sienna. . . . Toyota has not determined that the condition at issue in EA08-014 is a 'safety-related defect" within the meaning of the federal vehicle safety laws, and - a summarized below - it continues to believe that no such defect exists.

The culmination of all NHTSA’s Toyota sudden acceleration investigations was a handful of small recalls and service campaigns.All this changed after the Saylor crash when Toyota conducted a string of major recalls for accelerator pedals that stuck and floor mats that jammed the pedals.(See table below for a list of Toyota unintended acceleration recalls from 2005 to 2013.)While Toyota stridently denied any defects existed in the electronic controls of its vehicles, nonetheless the recall remedies included an electronic brake override system that would sense application of brakes and throttle at the same time and would reduce engine allowing the brakes to bring the accelerating.

Following the recalls, NHTSA imposed a series of civil penalties against Toyota for failing to do the unintended acceleration recalls on a timely basis that represented the maximum penalty under the Safety Act of $15 million adjusted for inflation.The pen­alties are shown below.

Date

Amount

Subject

Recalls

12-20-10

$16,375,000

Floor Mats

07E-082, 09V-388, 10V-023

04-19-10

$16,375,000

Sticky Pedals

10V-017

12-17-12

$17,350,000

Floor Mats

12V-305

On August 3, 2010, a consolidated master complaint in a class action was field in the US District Court for the Central District of California that include an Economic Loss claim over the diminished value of Toyota vehicles caused by unintended acceleration as well as Product Liability claims arising out crashes.In Re: Toy­ota Motor Corp. Un­intended Acceleration Marketing, Sales Practices, And Products Liability Litigation, Case No. 8:10 ML2151-JVSMO, CD CA. The Economic Loss portion was settled in December 2014 for a purported value of $1.6 billion after objectors supported by the Center for Auto Safety dropped their appeal in agreement for class counsel providing $1.5 million to the Center for Advanced Life Cycle Engineering at the University of Maryland and the Automotive Safety Research Institute in vehicle electronics failures.See Notice of Filing of Agreement , supra, Jan. 2014. The objection was based on the creation of a $30 million Driver Education and Research Fund in the settlement that allocated not a single dollar toward research into electronic defects that cause unintended acceleration in vehicles which was at heart of the lawsuit.

The Product Liability cases began to be settled in a mass wave after Toyota lost a jury verdict in Bookout et al v. Toyota Motor Sales USA Inc. et al., No. CJ-2008-7969, verdict re­turned (Okla. Dist. Ct., Okla. County Oct. 25, 2013).The case involved a 2005 Camry that killed one person and severely injured another when it went off a highway off-ramp in Oklahoma in September 2007.It was the first case to go to trial based squarely on the point that the computer code for the electronic throttle was fatally flawed.The jury returned a $3 million verdict and was out discussing what amount of punitive damages to assess when Toyota suddenly settled that case and others across the coun­try.